On 26 July, 1912, the clerk of the Superior Court of Harnett County issued letters of adoption purporting to establish the relation of parent and child between John A. Weathers and Irma Johnson, who at that time was five years of age. Thereafter Irma lived in the home of Weathers and his wife and was known as Irma Johnson Weathers. John A. Weathers died intestate on 6 April, 1922, seized of about eight hundred acres of land. He left no issue; but Irma’s death occurred a few hours after his. He was survived also by the plaintiffs, who are his brothers and sisters. Irma was survived by her father and mother, one illegitimate half-brother, two illegitimate half-sisters, and one whole brother, Haze Johnson, whose interest in the land, if any, has passed by conveyances to Victor R. Johnson and 0. W. Sand-rock. All these are parties to the action and represent the several conflicting claims of title. The father and mother of Irma contend that under the provisions of C. S., 185, the order of adoption enabled her to inherit, and that she did inherit, the real estate of John A. Weathers in like manner and to the same extent as if she had been his actual child; also, that upon her death the title she had thus acquired vested in them as tenants in common by virtue of the proviso in the sixth canon of descents. C. S., 1654(6). Haze Johnson and his successors in interest say that Irma’s estate was not derived or transmitted to her from an ancestor, but acquired by force of the order of adoption, and that her title therefore descended under the fifth rule, to Haze Johnson as her next collateral relation. On the other hand, the plaintiffs insist
Tbe procedure for tbe adoption of minors is prescribed by statute: a petition must be filed; there must be parties of record; and with tbe requisite consent an order may be made granting letters of adoption. C. S., ch. 2. Section 183 provides tbat tbe parent or guardian, etc., must be a party to tbe proceeding. We think tbe words “the parent,” should not be interpreted, if both parents are living, to include tbe father and exclude tbe mother, for- these several statutes construed as a whole seem to- import tbat ordinarily both tbe parents if living shall be parties. Tbe petition must set forth their names; and if both are living their consent is as a rule prerequisite to an order granting tbe letters; or, if one is dead, tbe consent of tbe survivor. If their consent is essential they must have an opportunity to be beard; and to be beard in a judicial sense and to be bound by tbe order they must be parties to- tbe proceeding.
At common law parental rights were vested in tbe father, and tbe mother bad no legal interest in tbe custody or earnings of her children; but modern decisions have relaxed tbe common-law doctrine and have indicated a manifest tendency to equalize tbe rights of custody and control.' True, under our own decisions tbe father is considered in law as tbe bead of tbe household and as such entitled in tbe first instance to tbe custody of bis child, — a right necessarily springing from bis duty to provide for tbe child’s protection, maintenance, and education. But this right is not absolute; circumstances often occur in which it may be questioned; and beyond doubt tbe mother’s natural interest in tbe. welfare of her children is not less profound than tbat of tbe father. Newsome v. Bunch, 144 N. C., 15; In re Fain, 172 N. C., 790. A father may by deed dispose of tbe custody and tuition of bis unmarried child for such time as it may remain under tbe age of twenty-one years; but only with tbe written consent and privy examination of tbe mother, if she be living. He may make such disposition by bis last will and testament in writing; but only if tbe mother be dead. If tbe father die without exercising tbe right of appointment, or if be wilfully abandon bis wife, tbe mother may in like manner dispose of tbe custody and tuition of her unmarried infant child. 3 C. S., 2151. In all these statutes, and in others, tbe Legislature has recognized tbe human as well as tbe legal relation between parent and child, tbe paramount and tbe subordinate, tbe present and tbe inchoate, rights of tbe father and tbe mother, and has wisely provided tbat both tbe parents shall have ade-
The plaintiffs contend that these requisites are wanting; the defendants contend that we should proceed upon the presumption that the court had jurisdiction of the parties and that the proceeding is regular. The proceedings, whether it be deemed judicial or a proceeding in rem or quasi in rem, calls for the exercise only of such judicial functions as are conferred by chapter 2 of the Consolidated Statutes and to this extent the jurisdiction of the clerk is limited and special. “The jurisdiction in such cases both as to the subject-matter of the judgment and as to the persons to be affected by it must appear by the record; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it. The power to enter a decree of adoption conferred upon a court of general jurisdiction is a special and summary power of this class, and the facts essential to the exercise of the special jurisdiction must appear upon the record. To give a decree of adoption any force or effect, jurisdiction must have been acquired by the court, first, over the person seeking to adopt'the child; second, over the child; and third, over the parents of the child; and there can be no presumption that jurisdiction was obtained over the parent of the child if the record of adoption is silent on the subject.” 1 R. C. L., 603, sec. 11.
In the light of this principle let us see whether it appears upon the record that the court had jurisdiction over Irma’s father and mother. When the clerk made the order of adoption the only paper before him was the petition. The petition, the order of adoption, and the letters of adoption constitute the entire proceeding. Statement of facts, par. 1. It does not affirmatively appear that the father and mother of the child were “parties of record in this proceeding,” as the statute requires. Sec. 183. Indeed, it does not affirmatively appear that either of them was a party. No summons or other similar notice was issued and served; there was no voluntary appearance; and of course the caption of the petition did not supply this defect. It is to be noted that the order of adoption contains no recital of the service of process or the appearance of the child’s parents. In the order there is a recital of the father’s consent to the adoption,' and from this, it is said, his appearance may be
It is not pretended tbat Martha Johnson (or Minnie Parker), the mother, was a party of record; but tbe defendants seek to relieve tbe necessity of her consent and tbe service of process on her by alleging tbat she bad abandoned her child and bad forfeited her rights and privileges with respect to its care, custody, and services. In 1 C. J., 1387(76) it is said: “To constitute such an abandonment by a parent as will deprive him of tbe right to prevent tbe adoption of bis child, and dispense with tbe necessity of bis consent, there must be some conduct on bis part which evinces a settled purpose to forego all parental duties. But merely permitting tbe child to remain for a time undisturbed in tbe care of others is not such an abandonment.” By tbe terms of tbe statute it is necessary tbat such abandonment be wilful, — -tbat is, accomplished purposely and deliberately in violation of law. S. v. Whitener, 93 N. C., 590. Tbe clerk’s finding (which is tbe recital of another allegation in tbe petition), as set forth in tbe order of adoption, is in these words: “Martha Johnson, mother of tbe child, is living away from her husband and child and takes no interest whatever in said child.” It does not appear upon tbe face of tbe record whether her absence was compulsory, negligent, or wilful; and in a proceeding of this kind inferences cannot supply tbe want of an affirmative adjudication. “WTben a petition alleges abandonment of a child it must make a case strictly within tbe provisions of tbe statute relating to such abandonment.” 1 C. J., 1385 (61).
Tbe mother bad no actual or constructive notice of tbe proceeding and no opportunity to be beard on tbe question of abandonment. It is held in a number of cases decided elsewhere tbat tbe existence of abandon
Upon the record as it has come to us we are of opinion that neither the father nor the mother of Irma Johnson was a party to the adoption proceeding within the contemplation of the statute,. and that the clerk had no jurisdiction of their person. Having no jurisdiction of their person he had no jurisdiction of the subject-matter: consent is essential to the order of adoption (sec. 184), and when the statute requires it to be given jurisdiction of the subject-matter cannot be acquired without it. 1 C. J., 1384 (57); In re Cozza, supra, note, page 221.
But it is contended on behalf of the defendants that John A. Weathers voluntarily entered into the contract of adoption, and during his lifetime recognized the relation thus created, and that after his death his heirs at law should not be permitted to avail themselves of a departure from the directions of the statute to defeat the rights of the child, and 10 R. C. L., 764 (81) is cited in support of the position. The principle no doubt applies in case of a mere technical disregard of the statute; but as the clerk had acquired no jurisdiction his order and letters of adoption are not simply irregular; as we have said they are void. In consequence they were binding neither on the father and mother nor on the adopting parent, because estoppels must be mutual; and if not conclusive against the parties, the order is not conclusive against their privies. Ferguson v. Jones, 11 A. S. R., 808, and cases cited in note, page 821; 1 C. J., 1393; Doyle v. Brown, supra; Kissam v. Gaylord, 46 N. C., 294, 298; Peebles v. Pate, 90 N. C., 348; Dudley v. Jeffress, 178 N. C., 111.
We do not concur in the argument that because the father and mother did not formally object to the letters of adoption during the lifetime of John A. Weathers they impliedly assented thereto and may now express their approval and thereby impart vitality to the clerk’s order. This order is void db initio; and the title to the land vested at the instant John A. Weathers died. It follows that the subsequent consent of the father and mother could neither divest the title nor confer jurisdiction upon the court.
In our opinion the order of adoption is void and subject to collateral attack; and as the plaintiffs have succeeded to the title of John A. Weathers they should be adjudged the owners of the land in controversy.
Error.